Judge: Mark A. Young, Case: 23SMCV05784, Date: 2024-10-01 Tentative Ruling
Case Number: 23SMCV05784 Hearing Date: October 1, 2024 Dept: M
CASE NAME: Fusco, et al., v. Crowley, et
al.
CASE NO.: 23SMCV05784
MOTION: Demurrer to the Cross-Complaint
HEARING DATE: 10/1/2024
LEGAL STANDARD
A demurrer for sufficiency tests whether
the complaint states a cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations
liberally and in context. In a demurrer proceeding, the defects must be
apparent on the face of the pleading or via proper judicial notice. (Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the
pleadings alone and not the evidence or other extrinsic matters. Therefore, it
lies only where the defects appear on the face of the pleading or are
judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff
need only allege ultimate facts sufficient to apprise the defendant of the
factual basis for the claim against him. (Semole v. Sansoucie (1972) 28
Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions,
deductions or conclusions of fact or law alleged in the pleading, or the
construction of instruments pleaded, or facts impossible in law.” (S. Shore
Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations
omitted.)
A special demurrer for uncertainty is
disfavored and will only be sustained where the pleading is so bad that
defendant cannot reasonably respond—i.e., cannot reasonably determine what
issues must be admitted or denied, or what counts or claims are directed
against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc.
(1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat
vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)
Any party, within the time allowed to
respond to a pleading may serve and file a notice of motion to strike the whole
or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).)
The court may, upon a motion or at any time in its discretion and upon terms it
deems proper: (1) strike out any irrelevant, false, or improper matter inserted
in any pleading; or (2) strike out all or any part of any pleading not drawn or
filed in conformity with the laws of California, a court rule, or an order of
the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767,
782 [“Matter in a pleading which is not essential to the claim is surplusage;
probative facts are surplusage and may be stricken out or disregarded”].)
“Liberality in permitting amendment is
the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿in
what manner¿plaintiff can amend the complaint, and¿how¿that
amendment will change the legal effect of the pleading.¿(Id.)
ANALYSIS
Cross-Defendants argue
that each cause of action is subject to the three-year statute of limitations set
forth in Code of Civil Procedure Section 338(b) for injuries to real property
and are therefore time barred since Cross-Complainants allegedly discovered
their injuries in 2017-2019. (CC ¶¶ 6-11.) Actions for damages to real property,
including negligence and nuisance, are generally subject to a three-year
statute of limitations. (CCP §338(b).) A statute of limitations begins to run
“when the cause of action is complete with all of its elements,” namely,
wrongdoing, causation, and resulting harm.¿ (Norgart v. Upjohn Co.
(1999) 21 Cal.4th 383, 397.)
For a statute of limitations to bar a complaint
on demurrer, “the defect must clearly and affirmatively appear on the face of
the complaint; it is not enough that the complaint shows that the action may be
barred.”¿ (Committee for Green Foothills v. Santa Clara County Bd. of
Supervisors (2010) 48 Cal.4th 32, 42, internal quotation marks
omitted.)¿“If the dates establishing the running of the statute of limitations
do not clearly appear in the complaint, there is no ground for general
demurrer.¿The proper remedy ‘is to ascertain the factual basis of the
contention through discovery and, if necessary, file a motion for summary
judgment...’” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316,
324-325, internal citations omitted.)
The accrual of the
statute of limitations for the instant claims depends on the nature of the
encroachment. (Starrh & Starrh Cotton Growers (2007) 153 Cal.App.4th
583, 594.) An encroachment may be continuing or permanent. (Beck
Development Co. (1996) 44 Cal.App.4th 1160, 1219-1222.) As to a continuing
encroachment, “If [a plaintiff] demonstrate[s] that whatever nuisance caused by
defendant is continuing in nature, every repetition of the wrong may create
further liability. Hence the statute of limitations would not run merely from
the original intrusion.” (Nestle v. City of Santa Monica (1972) 6 Cal.3d
920, 937 [applying “continuing wrong” principles equally to personal injuries
as to property damage].)
A permanent
encroachment is an intrusion on property that does not vary over time or cannot
be discontinued at any time in a reasonable manner for a reasonable
cost. (Starrh, supra, 153 Cal.App.4th 583, 592.) For example,
encroaching buildings, walls and foundations may be considered permanent
trespasses. (Castelletto (1961) 193 Cal.App.2d 64, 65.) The statute
of limitations for an action to remove a permanent trespass and associated
claims accrues on the date the trespass was first committed, regardless of when
the plaintiff learns of the encroachment. (Id.) The Starrh
court offered the following guidance to determine whether a particular trespass
is permanent or continuing:
“A
permanent trespass is an intrusion on property under circumstances that
indicate an intention that the trespass shall be permanent. In these
cases, the law considers the wrong to be completed at the time of entry and
allows recovery of damages for past, present, and future harm in a single
action, generally the diminution in the property's value. The cause of
action accrues and the statute of limitations begins to run at the time of
entry…
[On
the other hand,] a continuing trespass is an intrusion under circumstances that
indicate the trespass may be discontinued or abated. In these circumstances,
damages are assessed for present and past damages only; prospective damages are
not awarded because the trespass may be discontinued or abated at some time,
ending the harm. Pursuant to Civil Code section 3334, damages allowed for
continuing trespass include the value of the use of the property, reasonable
cost of repair or restoration to the property's original condition, and the
costs of recovering possession. Continuing trespasses are essentially a
series of successive injuries, and the statute of limitations begins anew with
each injury. In order to recover for all harm inflicted by a continuing
trespass, the plaintiff is required to bring periodic successive
actions.”
(Starrh, supra, at
594.) Thus, if a trespass or nuisance is continuing, “ ‘an action may be
brought at any time to recover the damages which have accrued within the
statutory period, although the original trespass occurred before that period.’
” (Polin v. Chung Cho (1970) 8 Cal.App.3d 673, 678 [the defendant
diverted a stream and storm drain onto plaintiff's adjoining lot, eroding the
plaintiff’s land during rain].) However, courts caution that in doubtful cases
“the plaintiff has an election to treat a [trespass] as permanent or
continuing.” (Starrh, supra, at 592-93.) Further, whether a
trespass is continuing or permanent “is a question of fact properly submitted
to the jury”. (Id. at 597; see, e.g., Madani v. Rabinowitz (2020)
45 Cal.App.5th 602 [boundary fence on plaintiff's land and inoperable cars
parked on plaintiff's driveway could be considered continuing or permanent for
limitations purposes since these encroachments may be abated with little cost].)
Here, the
cross-complaint alleges facts which show that the encroachment is continuing in
nature. The cross-complaint alleges that in 2017, water poured down the
property line from the Cross-Defendants’ pool between the Fusco and
Crowley-Summers Properties, eroding away the hillside on the Crowley-Summers
Property. (CC ¶ 8.) Cross-Complainants informed Cross-Defendants of the lack of
adequate drainage and mud flows from the Fusco Property, which Cross-Defendants
ignored. (Id.) Six months later, Cross-Complainants informed Cross-Defendants
that they had two drains that which were backed up or disconnected and feeding
runoff to Cross-Defendants’ hillside. (¶ 9.) After heavy rains caused mudflows
from the Fusco Property in 2019, Cross-Complainants intervened to protect the
hillside from flood damage. (¶10.) In
the course of doing so, Cross-Complainants discovered, among other issues, that
the pipes on the Fusco Property were filled with roots and that the catch basin
was destroyed. (Id.)
Cross-Defendants argue
that, as a matter of fact, Cross-Defendants have abated the nuisance, and
therefore the nuisance is no longer continuing. (¶ 10.) However, the
Cross-complaint does not reveal that the nuisance has been abated completely.
The cross-complaint alleges that Cross-Defendants ignored the problem, there
were heavy mudflows from the Fusco Property in January 2019, Cross-Complainants
intervened to protect the hillside, and Cross-Complainants discovered that the
pipes and catch basin were destroyed. The complaint does not allege, as a
matter of fact, that the nuisance was then abated and has caused no further
damage. Instead, the cross-complaint goes on to allege that the nuisance has
not been abated. (¶ 47.) Cross-Defendants contend that the Ficus trees which
clogged the pipes have been removed. (¶ 36.) Yet, the cross-complaint alleges
that although the Ficus trees were finally removed, ‘their damage was never
repaired.” (Id.) Further, the
cross-complaint establishes that Cross-Defendants are “trespassing onto the
Crowley-Summers Property to connect into the drainage system on the
Crowley-Summers Property without authorization,” and in so doing, are
“continuing to commit a nuisance subject to abatement.” (Id., ¶ 47.) This
scenario is distinct from Cross-Defendants’ cited case of Lyles, where
it was undisputed that plaintiffs suffered one-time damage and no continuing damage
from the subject drainage system. (Lyles v. State of California (2007)
153 Cal.App.4th 281, 285.) For pleading purposes, the nuisance is continuing in
nature, and the statute of limitations would therefore not bar the instant
claims.
Accordingly, Cross-Defendants’
demurrer is OVERRULED.
Cross-Defendants to
file an answer within 20 days.